We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

Check this, says EEOC: be careful with criminal background checks

Following through on guidance issued last year, the Equal Employment Opportunity Commission filed two recent suits against employers the agency alleged engaged in the unlawful and discriminatory use of criminal backgrounds checks.

Complaints were filed against BMW Manufacturing Co. LLC and Dollar General. In the suit against BMW, the EEOC said the company’s use of criminal background checks resulted in disproportionately screening out African-American contractors at a South Carolina facility.

The claimants fell under the company’s policy of excluding individuals with “any convictions of a violent nature,” and convictions involving “theft, dishonesty, and moral turpitude,” as well as murder, assault and battery, rape, child abuse, domestic abuse, manufacturing of drugs, distribution of drugs, and weapons violations. In addition, BMW’s written policy stated that “there is no statute of limitations for any of the crimes."

When BMW switched to a new logistics services provider, it required employees to re-apply for their positions and undergo a criminal background check. Of the 645 existing employees, 88 had criminal convictions; 69 were African-American, the EEOC said. “The gross disparity in the rates at which black and non-black employees” lost their employment due to the criminal background check “is statistically significant,” the agency alleged.

The disproportionate percentage of black employees affected by the criminal conviction policy constitutes an unlawful employment practice in violation of Title VII, according to the complaint. “BMW’s policy had, and continues to have, a significant disparate impact on black employees and applicants and is not job-related and consistent with business necessity. The effect of the practice has been to deprive the claimants of equal employment opportunities.”

Similar claims were made by the agency against Dollar General in a suit filed in Illinois federal court.

The retailer has “engaged in ongoing, nationwide race discrimination against [African-American applicants] in violation of Title VII” since January 2004, the agency alleged, and the use of criminal justice history information has had a disparate impact on minority applicants. Dollar General’s policy provides that once an applicant is given a job offer, the store manager submits information to a third party vendor who conducts a criminal background check. The company established a matrix identifying specific felonies and misdemeanors to exclude applicants with specifications on how recent the convictions must be to rescind an offer. Convictions mandating disqualification include flagrant non-support, illegal dumping, and failure to file an income tax return.

The utilization of the criminal convictions policy “has not been demonstrated to be and is not job-related and consistent with business necessity,” the EEOC said. “Consideration is not given to the age of the offender, any actual nexus between the crime and the specific job duties, employee safety, or to the time or events that have transpired since the offence.” the agency added.

Both suits seek a permanent injunction from the allegedly discriminatory policies as well as back pay and other affirmative relief for the claimants.

Why it matters: Filed on the same day, the lawsuits are the first from the EEOC after guidance issued last year by the agency for employers on how to use criminal background check information. The lesson for employers: use such checks carefully. The agency’s guidance, “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” emphasized that while the use of criminal justice history information does not violate Title VII per se, an employer may run afoul of the law if the checks result in systemic discrimination based on race, color, national origin, religion, or sex – as alleged by the EEOC in the BMW and Dollar General suits. Further, the guidance suggests employers should conduct an individualized assessment, considering factors like the nature of the crime and its relation to the potential job, as well as how much time has passed since the conviction and rehabilitation efforts.

Related topic hubs

Compare jurisdictions: Litigation: Enforcement of Foreign Judgments

"The newsfeeds deliver us the most recent legal analysis and practical information. There seems to be a broad analysis which is beneficial to us in analyzing various areas of law. It provides a snap shot update of various legal developments and assists us in staying current. The articles are well covered and include the right amount of detail. The size and depth of articles are good too, so we can get to the information one needs very quickly. The articles are typically of high calibre and from high-calibre authors who provide sufficiently succinct articles so that one can learn much about new developments in a short amount of time. I like the format because it is easy to scan for relevant articles. It's a great tool. I like the fact you can tailor the newsfeeds by jurisdiction and work area, and only receive information relevant to your practice."